Ninth Circuit Rules That California's Proposition 8 Is Unconstitutional For Not Allowing State "Domestic Partnerships" To Be Called "Marriage"

Law.com reports:

Taking a narrow approach in deciding the blockbuster challenge to California's ban on gay marriage, a split panel of the Ninth Circuit U.S. Court of Appeals on Tuesday found Proposition 8 unconstitutional.

Writing for the majority, Judge Stephen Reinhardt said the ban runs afoul of the Equal Protection Clause, serving no purpose other than "to lessen the status and human dignity" of gays in California who could legally marry for a few months before the 2008 vote on Prop 8. The Constitution, Reinhardt wrote, citing the U.S. Supreme Court's Romer v. Evans, does not allow for "laws of this sort."

Judge Smith dissenting from today's Ninth Circuit ruling overturning California's Proposition 8 wrote the following:

"The United State Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage... [P]roposition 8 is subject to rational basis review rather than to any heightened scrutiny... Here, the majority backs into its inference of animus...[but o]ur task is to determine whether Proposition 8 serves any independent legitimate government interest... Proponents argue that Proposition 8...preserves the fundamental and historical purposes of marriage...[and that if struck down it] would fundamentally redefine the term from its original and historical procreative purpose. This shift in purpose would weaken society's perception of the importance of entering into marriage to have children... Proponents also argue...that Proposition 8 promotes the optimal setting for the responsible raising and care of children - by their biological parents in a stable marriage relationship... [T]he people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting... Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a relationship to legitimate state interests."

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